Barnes v. Warth

• Decision Date: 27 October 1942
• Docket Number: 9401.
• Parties: BARNES et al. v. WARTH, Judge, et al.
• Court: West Virginia Supreme Court

22 S.E.2d 547

124 W.Va. 773

BARNES et al. v. WARTH, Judge, et al.

No. 9401.

Supreme Court of Appeals of West Virginia.

October 27, 1942

West & Rubin, of Huntington, for petitioner.

W H. Daniel, of Huntington, for respondent.

LOVINS Judge.

Relators filed their petition in this Court, praying for a peremptory writ of mandamus directed to Honorable H. Clay Warth, Judge of the Common Pleas Court of Cabell County, Zetta V. Cross and Walter G. Wittenborn, requiring the Judge of the Common Pleas Court to set aside and vacate an order giving certain defendants in the chancery cause of Barnes, et al. v. Cross et al. opportunity to make answer to the amended bill of complaint therein, and to enter a final decree on the allegations of the amended bill.

The controlling facts are not disputed. Barnes and his co-plaintiffs in the chancery cause filed their bill of complaint in the Common Pleas Court of Cabell County. Mrs Cross and Wittenborn, two of the defendants in the chancery cause, filed a demurrer and two pleas thereto. The demurrer was sustained, with leave to amend the bill, but no ruling was made on the pleas. Plaintiffs in the chancery cause then filed an amended bill, to which Mrs. Cross and Wittenborn demurred. The last-mentioned demurrer was overruled by an order entered on July 2, 1942, and no further action was taken until July 28, 1942, when plaintiffs in the chancery cause moved the Common Pleas Court to take the amended bill as confessed and for final decree thereon granting them such relief as in the opinion of the court they were entitled to have.

The ground of the motion was that no answer to the amended bill had been filed within fifteen days from the entry of the order overruling the demurrer to the amended bill. The motion was opposed and request made for enlarging the time for filing the answer to the amended bill to August 15, 1942, on the ground that Mrs. Cross and Wittenborn had been absent from the city and that verification of their answer could not be obtained because of such absence. On July 31, 1942, the Common Pleas Court of Cabell County entered an order overruling the motion to take the bill of complaint as confessed and sustaining the motion to enlarge the time for filing the answer to August 15, 1942.

Respondents contend that the fifteen-day period, provided in Code, 56-4-56, did not begin to run until the court had acted on the pleas to the original bill of complaint. We are unable to agree with this contention. The court by its action in sustaining the demurrer to the original bill rendered the pleas ineffective. The ruling on the demurrer eliminated any necessity for a ruling on the pleas to the original bill. If Mrs. Cross and Wittenborn desired further to avail themselves of the allegations of their pleas, they should have tendered them to the amended bill.

The question whether mandamus is the proper remedy confronts us at the threshold of this inquiry. It has been held by this Court that mandamus may be used to require an inferior court to take and exercise jurisdiction. French v Bennett, 69 W.Va, 653, 72 S.E. 746. Mandamus will issue to compel an inferior court to vacate a judgment which is not in accordance with the jury's verdict and to enter a proper one. McComas v. Warth, 113 W.Va. 163, 167 S.E. 96. In the recent case of White Sulphur Springs, Inc., v. Jarrett,...